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Kuar v United Cabs Ltd [2022] FJHC 63; HBC46.2021 (18 February 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Civil Action No. HBC 46 of 2021

BETWEEN

AMRIT KUAR of Lot 16, Solinga Street, Off Matanikorovatu Road, 8 Miles, Domestic

Duties as the Administratrix in the ESTATE OF CHANDAR PAL

of Lot 16, Solinga Street, Off Matanikorovatu Road,

8 Miles, Deceased.

PLAINTIFF

AND

UNITED CABS LIMITED a limited liability company duly incorporated in Fiji

and having its registered office at 33 Raojibhai Patel Street, Suva.

FIRST DEFENDANT

AND

THE REGISTRAR OF TITLES a statutory body established pursuant to the

Land Transfer Act of Fiji, 1^st Floor, Suvavou House,

Victoria Parade, Suva.

SECOND DEFENDANT

Counsel : Ms. Devan S. for the Plaintiff

Mr. Kant S. for the 2^nd Defendant

Date of Hearing : 10^th February 2022

Date of Judgment : 18^th February 2022

JUDGMENT

[1] The plaintiff filed this originating summons (expedited form) seeking the following orders:

1. An order under section 69, section 70(2) and section 168 of the Land transfer Act 1971 that the second defendant discharge or cancel mortgage No. 165059 lodged by the 1^st defendant affecting the land, legal description of which is Lease No.132362, being Lot 16 on Deposit Plan No. 3922 and having an area of 38,5 perches.
2. Further or other order as this honourable Court may deem fit.

[2] The plaintiff in this action is the administratrix of the estate of her deceased husband Chandar Pal. The deceased owned the property described as Lease No. 132362, being Lot 16 on deposited plan No. 3922.

[3] The said property was mortgaged (Mortgage No. 165059) by the deceased for $3,500.00 to the 1^st defendant on 28^th September 1978.

[4] In the affidavit in support the plaintiff states that her solicitors carried out a company search and 1^st defendant company is in liquidation. However, the plaintiff is unable to confirm whether the company is still operational. After making an attempt to locate the 1^st defendant the plaintiff with the leave of the court serve the Originating Summons by advertising in a daily newspaper.

[5] Sections 69 and 70 of the Land Transfer Act 1971 provides:

69. Upon proof of the death of the annuitant or of the occurrence of the event or circumstance upon which, in accordance with the provisions of any mortgage, the annuity, rent charge or sum of money thereby secured shall cease to be payable, and upon proof that all arrears and interest have been paid, satisfied or discharged, the Registrar, upon the application of the proprietor, shall enter a memorial in the register noting that such annuity or sum of money is satisfied and discharged and shall cancel such instrument, and upon such entry being made, the land, or estate or interest therein, charged shall cease to be subject to or liable for such annuity, rent charge or sum of money, and the Registrar shall endorse on the duplicate instrument of title of the mortgagor a memorandum of the date on which such entry was made by him in the register.

70(1) If any mortgagor is entitled to pay off the mortgage money and the mortgagee is absent from Fiji and there be no person authorized to give a receipt to the mortgagor for the mortgage money, the Chief Accountant may receive such mortgage money with all arrears of interest then due thereon in trust for the mortgagee or other person entitled thereto, and thereupon the interest upon such mortgage shall cease to run or accrue and the Registrar shall, upon the application of the mortgagor accompanied by the receipt of the Chief Accountant for the amount of such mortgage money and interest, enter a memorial in the register discharging the mortgage and stating the time at which such entry was made, and such entry shall be a valid discharge of such mortgage and shall have the same force and effect as is therein given to a like entry made under the provisions of sections 68 o0;>9, and the RegisRegistrar shall endorse the like memorial on the duplicate instrument of the title of the mortgagor ano on uplicate instrument of the mortgage, whenever those instruments shall be brought ught to hito him for that purpose.

(2) If it be proved to the satisfaction of the Registrar that the whole of the moneys payable under a mortgage whether as principal or as interest has been paid ,and that the mortgagee or his transferee is dead or absent from Fiji or cannot be found and there is no person in Fiji empowered or authorised to discharge the mortgage on behalf of such mortgagee or transferee, the Registrar shall enter a memorial in the register discharging from such mortgage the land, or estate or interest therein, charged thereby, stating the time at which such entry was and such entry shall be a valid and sufficient discharge from such mortgage, and the Registrar shall endorse the like memorial on the duplicate instrument of title when produced for that purpose.

[6] In the matter there is no evidence that the mortgagor paid the sum due on the mortgage. In the affidavit in support the plaintiff states that she believes that considerable time has lapsed from the date of the mortgage and as such any advances secured by the mortgage would have been satisfied by her deceased husband.

[7] The above statement is not sufficient for the court to decide that the mortgage amount has been settled.

[8] The learned counsel for the plaintiff submits that in view of section 8(1) and (2) of the Limitation Act 1971 no action can be brought to recover any principal sum secured by a mortgage after the expiration of twenty years from date when the right to receive money accrued.

[9] Section 8(1) and (2) of the Limitation Act 1971 provide

(1) No action shall be brought to recover any principal sum of money secured by a mortgage or other charge on property, or to recover proceeds of the sale of land, after the expiration of twenty years from the date when the right to receive the money accrued.
(2) No foreclosure action in respect of mortgaged personal property shall be brought after the expiration of twenty years from the date on which the right to foreclose accrued:

[10] Provided that if, after that date the mortgagee was in possession of the mortgaged property, the right to foreclose on the property which was in his possession shall not, for the purposes of this subsection, be deemed to have accrued until the date on which his possession discontinued.

[11] This mortgage bond had been executed more than 43 years ago on 28^th September 1978. The mortgage bond reads thus:

In consideration of the sum of $3,500.00 (THREE THOUSAND FIVE HUNDRED DOLLARS) lent to the Mortgagor by UNITED CABS LIMITED a limited liability company having its registered office at 69 Usher Street, Suva, in the Dominion of Fiji hereinafter called the Mortgagee the receipt of which sum the Mortgagor hereby acknowledges doth hereby covenant with the Mortgagee FIRSTLY THAT THE Mortgagor will pay to the Mortgagee the above sum of $3,500.00 (THREE THOUSAND FIVE HUNDRED DOLLARS) and such further advances as the Mortgagee may in its absolute discretion make to the Mortgagor ON DEMAND.

[12] It appears from the above clause of the mortgage bond that there is no prescribed date on which the sum due on the mortgage should be paid. The payment becomes due on demand. There is no evidence that the mortgagee made such a demand. Therefore, the plaintiff cannot rely on the provisions of section 8 of the Limitation Act and only alternative available to the plaintiff is to deposit the sum due on the mortgage with the Chief Accountant and to have the mortgage discharged.

ORDERS

1. Orders sought in the Originating Summons are refused.
2. The plaintiff, however, is entitled to have the mortgage discharged upon payment of the mortgaged sum into court.
3. There will not be an order for costs.
   

Lyone Seneviratne

JUDGE

18^th February 2022